The U.S. Supreme Court tossed out Florida's death penalty statute on Tuesday, declaring it unconstitutional. Still unclear, though, is who will live and who will die.

That is work that now falls to the Florida Supreme Court. Those seven justices, including James E.C. Perry, a former trial judge in Sanford, must answer two key questions that will largely determine who among the 390 inmates on Florida's death row will get relief.

Lawyers, judges and death penalty specialists disagree on what that court will do. Many, though, say it's a good bet that the U.S. Supreme Court decision will affect all the defendants who have not exhausted their appeals.

That could be about 60 percent of Florida's death row population.

For those, the benefit may not be an automatic conversion of their sentence to life in prison. It might be a new sentencing hearing – a mini-trial – something that could leave the inmate right back where he started, with another death sentence, should the Florida Legislature, as expected, finish a rewrite of the state's capital punishment statute this session.

The death penalty cases, said Michael Pirolo, chief assistant to the Public Defender in Brevard County, "are coming back, but it's one by one. It's not just some blanket order."

The two key questions before the Florida Supreme Court are:

Is the high-court ruling retroactive?

Was the ruling a fundamental change in the law or merely procedural?

The Florida high court could provide answers in the next three weeks. That's because the state is scheduled to execute a two-time Glades County murderer, Cary Michael Lambrix, on Feb. 11.

Cary Michael Lambrix

Florida Department of Corrections

Cary Michael Lambrix

Cary Michael Lambrix

(Florida Department of Corrections)

On Friday, it refused to halt the execution. A few days earlier, Florida Attorney General Pam Bondi had said there was no need for a stay because the new ruling does not apply to him.

The court has made no decision about that. It will hear arguments Feb. 2 then rule.

Violating defendants' rights

By an 8-1 vote the U.S. Supreme Court declared Florida's capital sentencing scheme unconstitutional, saying in death penalty cases juries – not judges – must spell out at least one reason why the defendant should be put to death.

Under the old system, jurors listened to evidence then voted on whether to recommend life in prison without the possibility of parole or death. Their decision did not need to be unanimous.

The final decision was left to a judge.

In Tuesday's majority opinion, Justice Sonia Sotomayor wrote that by having the judge make the final decision, Florida was violating a defendant's right to be tried by a jury of his peers.

The test case involved Timothy Lee Hurst, who was convicted of murdering his boss in a Pensacola Popeye's restaurant in 1998.

The U.S. Supreme Court did not convert his sentence of one of life in prison. It merely threw out his death sentence. He is still a convicted murderer. It's now up to the state to figure out what sentence to mete out and how to do it.

The high court said the Florida Supreme Court, or perhaps a trial court, must now determine whether Hurst was harmed by the flaw. In other words, would the defendant have been given the same sentence if a jury – rather than a judge – had pronounced sentence.

Sotomayor included a heavy-handed hint: "… (W)e do not reach the State's assertion that any error was harmless."

Opinions differ on impact

Tuesday's ruling was broad. It means that everyone on Florida's death row was sentenced under a law that has now been deemed unconstitutional.

But there is a wide span of opinion on how, in the end, it will impact the people on Florida's death row.

Some lawyers argue that everyone there should have their sentences converted to life in prison. Others say they should all get new sentencing hearings.

Jeff Ashton believes Florida death-penalty cases won't be affected

Two days after the U.S. Supreme Court struck down Florida's death penalty, questions are lingering in Central Florida over how the historic ruling will affect ongoing and past capital cases.

Two days after the U.S. Supreme Court struck down Florida's death penalty, questions are lingering in Central Florida over how the historic ruling will affect ongoing and past capital cases.

Orlando criminal appeals specialist Paula Coffman and Orange-Osceola State Attorney Jeff Ashton predicted few death row inmates would see their sentences reduced.

"It's going to apply to very few inmates," Coffman predicted.

Retired Circuit Judge O.H. Eaton Jr. of Sanford, a death penalty scholar, predicted that in several months, the Florida Supreme Court would make a single ruling involving every condemned murderer who is still "in the pipeline," in other words has an active appeal, and reduce their sentences to life.

The court would do that, he predicted, to spare the expense and danger of transporting inmates back to the counties where they were originally tried.

Despite the wide range in opinion, many experts agree on some basics: The new ruling is likely to do nothing to help at least 150 death row inmates, those who have exhausted their appeals.

Among them are James Duckett, 58, the former Mascotte police officer convicted in the 1987 rape and murder of an 11-year-old girl; and Konstantios Fotopoulos, 56, the Daytona Beach businessman convicted of murdering two people, including a hit man he'd hired in a botched attempt to kill his wife in 1989.

But many experts agree that it should apply to defendants who have not exhausted their appeals. That includes Bessman Okafor, 31, the Orange County man convicted last year of murdering a witness in 2012 to keep him from testifying; Dwayne White, 45, the Orlando man convicted of fatally stabbing and slashing his estranged wife at a Miami Subs shop near Interstate 4 and Longwood in 2011; and Andrew Allred, 29, the Oviedo man convicted of fatally shooting his former girlfriend and her new beau in 2007.

Complex set of issues

Defense attorneys are expected to flood state courts with paperwork because of the new ruling.

Maria DeLiberato, a Tampa-area attorney, works for Capital Collateral Regional Counsel, a state agency that represents indigent death row inmates. She has 11 clients on death row.

"Certainly we will be arguing that all of those people, most if not all have been sentenced under an unconstitutional statute and they should be given a new hearing," she said. "Certainly the Florida Supreme Court will weigh in on whether the decision is retroactive and how many people it ultimately affects."

Robert Wesley

Red Huber / Orlando Sentinel

Orange/Osceola Public Defender Robert Wesley calls for an end to 'low-value' arrests. His push comes as news is spreading about the judge-ordered arrest of a Hospice patient who didn't pay court costs.

Orange/Osceola Public Defender Robert Wesley calls for an end to 'low-value' arrests. His push comes as news is spreading about the judge-ordered arrest of a Hospice patient who didn't pay court costs.

(Red Huber / Orlando Sentinel)

One of the biggest issues Florida judges will face is whether the error harmed a defendant. That is something that must be reviewed on a case-by-case basis, Pirolo said.

It's a complex set of issues, said Robert Wesley, the elected Public Defender for Orange and Osceola counties.

"Nothing could be more important. … This is going to foster a lot of litigation, and it's not going to be easy and a quick fix by the Legislature and by the Florida courts."